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Blue Views: Law or Politics?
In Feb. 5 Issue
By Kathy Foley, Columnist

It seems there is a legitimate legal issue to be decided as to whether or not the Health Care Reform Bill, or at least part of it-namely the individual mandate, is constitutional.

There seems to be no doubt that that question will be decided by the Supreme Court. The judicial system in this country, including and especially the Supreme Court, was intended to be non-partisan and above the fray of politics. Sadly, this is no longer the case, if indeed it ever was. In the past, however, judges and justices would at least pretend that their only concern was following the law; they would attempt to avoid appearances that they were influenced by partisan politics. Now, not so much.

To date, we have seen four federal district judges rule on the new health care law-2 of them, appointed by President Clinton, upheld it and the other 2, appointed by Republican presidents, struck it down-one in its entirety and the other only the individual mandate portion. Judge Roger Vinson, appointed by President Reagan, this week ruled the entire law to be unconstitutional, but he did not stop there. His 78-page opinion did not merely cite the law as he reads it, but he apparently had no qualms about waxing long and hard on his political leanings-even to the point of pandering to Tea Party conservatives by using the original Boston Tea Party in his discussion of unlimited government powers. According to Jonathan Turley, a George Washington University Constitutional Law Professor, these sorts of political commentaries have no place in a legal opinion.

Currently and in the very recent past we have seen more and more politics in play in our Judiciary-up to and including the Supreme Court. We are used to hearing the Republicans cry foul and complain of "judicial activism" when a ruling doesn't go their way, but apparently "activist judges" aren't a problem for them when they make decisions they like. Personally, I don't like it either way. I would like to have faith in our judicial system that they will follow the law and only the law. Regrettably, I cannot.

Conservatives have called Justice Antonin Scalia the model of a judge who isn't an activist. And yet, just last week he held a seminar on constitutional issues with the Tea Party Caucus. Did they perhaps discuss the Health Reform Law and how best to present their case to the Supreme Court when it comes before them? We don't know because the event was closed to the press.

Then there is Justice Clarence Thomas, whose wife, Virginia, founded the Tea Party PAC, Liberty Central, and is a long-time outspoken conservative activist. Now, I am totally in favor of the wives of powerful men having their own careers and their own voices, but can we really believe that Justice Thomas will not be influenced by his wife when some of these issues come before him?-Especially when his wife publicly suggested on Liberty Central's website that the recently passed health care legislation was unconstitutional. Now, I might be willing to give Justice Thomas a pass and say that I was sure he would not let his wife's political leanings influence him in any decisions he might have to make as a Supreme Court Justice if he had a history of being a paragon of ethical discretion. That, however, couldn't be further from reality. Only a few weeks ago, he was called to task by the watchdog group, Common Cause, for neglecting to report nearly $700,000 of income earned by his wife on financial disclosure forms that are required by law.

"It has come to my attention that information regarding my spouse's employment required in Part III B of my financial disclosure report was inadvertently omitted due to a misunderstanding of the filing instructions," Thomas wrote in a letter to the committee that handles the reports.

"Justice Thomas sits on the highest court of the land, is called upon daily to understand and interpret the most complicated legal issues of our day and makes decisions that affect millions," Common Cause president Bob Edgar said after viewing the amendment. "It is hard to see how he could have misunderstood the simple directions of a federal disclosure form. We find his excuse is implausible."

So, no, even aside from the Anita Hill sexual harassment charges against him nearly 20 years ago (which I always believed were true), I don't give Justice Thomas props for integrity and ethics.

Most court-watchers now believe that the issue of the constitutionality of the health care bill will now come down to which Supreme Court Justices were appointed by a Democrat or Republican President. It is believed that 4 will vote to uphold the law and 4 will vote against it. In spite of the fact that 69,456,897 Americans voted for Barack Obama who campaigned on health care reform-in spite of the fact that 218 House Representatives and 60 Senators voted for health care reform, it will now come down to one single vote from one man, Justice Anthony Kennedy, who was not elected by anyone, to determine the fate of this law. He was appointed by President Reagan. Will he decide based on law or politics?

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